How does a Hague Convention claim for the return of a child to her country of origin, when the child had been accepted in Canada as a Convention refugee, apply (especially in the context of parental abuse)?

A.M.R.I. v. K.E.R., 2011 ONCA 417 raises the important question of the rights of affected parties on an application under the Hague Convention for the return of a child to her country of origin, when the child had been accepted in Canada as a Convention refugee by reason of abuse by her mother.

The Court holds that, properly interpreted, there is no conflict between the Hague Convention and refugee status an exception to the Convention applies where there is danger to harm.

In the instant case, the failure to consider the exception, and the failure to allow the child to address the issue, rendered the return improper. The Court held:

(d) Conclusion

[87] To conclude on this issue, the case for conflict between s. 115 of the IRPA and s. 46 of the CLRA fails and the doctrine of federal paramountcy does not arise. A finding of refugee status accorded by the IRB to a child affected by a Hague Convention application gives rise to a rebuttable presumption that the removal of the child from Canada will expose the child to a risk of persecution, that is, to a risk of harm. In these circumstances, Canada’s non-refoulement obligations and the import of a child’s refugee status must be considered under the art. 13(b) (grave risk of harm) and art. 20 (fundamental freedoms) exceptions to mandatory return under the Hague Convention.

(3) Did the Application Judge Err in Ordering the Child’s Return to Mexico?

[88] A Hague application judge’s decision attracts considerable deference from this court. As the mother’s counsel stressed during oral argument, appellate review of a Hague decision is not a hearing de novo or an invitation to relitigate the matters determined on the application: Katsigiannis at para. 30; Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (C.A.), at para. 10. But, the deference usually accorded to a Hague ruling is displaced where the Hague application judge applied the wrong legal principles or made unreasonable findings of fact: see Jabbaz v. Mouammar (2003), 171 O.A.C. 102 (C.A.), at para. 36; Katsigiannis at para. 31. Moreover, standard of review considerations are irrelevant where a breach of natural justice or hearing unfairness is established.

[89] In this case, the one-sided nature of the Hearing undoubtedly hampered the application judge’s task. With no involved responding party, he was confronted with less than a comprehensive ‘paper’ record, submissions from only one party to the dispute and the obligation to determine the issue of the child’s return promptly. Further, as is frequently the case on a summary Hague application, the child whose return was sought was not before the court. However, a Hague application judge has the authority to arrange for the child to be brought before the court to express his or her views and preferences regarding the return request and, in exceptional cases, to require viva voce testimony from witnesses: Cannock at para. 36; De Silva v. Pitts (2008), 232 O.A.C. 180 (C.A.), at para. 46; Cornfeld v. Cornfeld, [2001] O.J. No. 5773 (C.A.), at para. 5, per Charron J.A. (in chambers).

[90] It is against this backdrop that we consider the father’s and the OCL’s claim that the Hearing was fatally flawed and that the application judge made several errors justifying this court’s intervention.

(a) Failing to consider the child’s refugee status

[91] The application judge was aware of the IRB’s decision granting the child refugee status. Nonetheless, the Hearing transcript provides no comfort that he accorded any real weight to the child’s refugee status or to her entitlement to protection from refoulement. These were essential considerations on the inquiry as to whether the grave risk of harm and fundamental freedoms exceptions to return were triggered. We discuss this issue further in the next section of our reasons.

(b) Failing to consider exceptions to mandatory return

[92] The father and the OCL submit that the application judge erred by failing to consider the exceptions to mandatory return set out under the Hague Convention. We agree with this submission.

[93] The transcript of the Hearing reveals that the application judge was alive to some of the relevant issues under the Hague and Refugee Conventions and raised them with counsel. However, it also confirms that he did not pursue most of his initial inquiries of counsel on these issues. Based on his failure to do so, and in the absence of reasons for his decision, we cannot be satisfied that he addressed the exceptions to return that were critical to the decision whether to order the child’s return to Mexico. On this ground alone, the order of return cannot stand and a new Hague Convention hearing is necessary.

Grave risk of harm and fundamental freedoms exceptions

[94] As we have indicated, the child’s refugee status gave rise to a rebuttable presumption that her return to Mexico would expose her to a risk of persecution and, hence, to risk of harm within the meaning of art. 13(b) of the Hague Convention. This required the application judge, in determining whether to grant an order of return, to assess the existence and extent of any persisting risk of persecution to be faced by the child in Mexico.

[95] Further, the record before the application judge included affidavit materials that, on their face, called into question some of the exceptions to return including, particularly, art. 13(b). It also indicated that the IRB had found the child to be a credible witness, accepted her refugee claim on the basis of abuse by her mother, and concluded that she had rebutted the strong presumption of Mexico’s capacity to adequately protect her. This evidence cried out for a meaningful assessment of whether and to what extent the child faced a persisting risk of persecution if she was returned to Mexico.

[96] This risk assessment was not undertaken. Indeed, the transcript contains no reference to arts. 13(b) or 20 at all. Instead, having recognized that the Refugee Convention was in play, the application judge appears to have simply accepted, without further inquiry, the mother’s bald denial of any abuse and counsel’s representations that the child’s abuse claims were “highly incredibl[e]” and inconsistent with the mother’s evidence regarding her relationship with the child.

[97] Moreover, by virtue of her status as a Convention refugee, the child’s s. 7 Charter rights to life, liberty and security of the person were engaged on the Hague application. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 210, the Supreme Court held, in respect of refugee claimants, that due to the severe consequences of the denial of refugee status for those persons with a “well-founded fear of persecution”, it is “unthinkable that [s. 7 of] the Charter would not apply to entitle them to fundamental justice in the adjudication of their status”. The Supreme Court has also recognized that s. 7 Charter rights are implicated when it is sought to detain a permanent resident or foreign national on national security grounds or to remove a Canadian citizen or a Convention refugee from Canada under the IRPA and extradition processes: see Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, at paras. 2-4; Németh at para. 70; United States v. Burns, [2001] 1 S.C.R. 283, at para. 59; Suresh at paras. 76-79.

[98] There is no principled reason why a refugee child’s s. 7 Charter rights are not similarly engaged where the child’s involuntary removal under the Hague Convention from Canada to a country where the child has already been found to face a risk of persecution is sought. As a result, the return of a refugee child under the Hague Convention must be effected in accordance with the principles of fundamental justice. As a matter of procedural protection, these principles require a fair process that takes account of various sources of international human rights law: Suresh at para. 46.

[99] It follows that, on an application for the return of a refugee child under the Hague Convention, the child’s s. 7 Charter rights also mandate that a risk assessment be performed regarding the existence and extent of any persisting risk of persecution to be faced by the child on return from Canada to another country.

[100] This conclusion is buttressed by existing authorities regarding the circumstances in which an assessment of the risk of persecution must be undertaken: see Németh at para. 114 (in the context of a removal pursuant to the power of surrender under the Extradition Act); Ragupathy v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 490 (F.C.A.), at paras. 18-19 (in the context of the proposed deportation of a refugee under one of the statutory exceptions to the principle of non-refoulement); Suresh at paras. 76-79 (in the context of the removal of a refugee to face risk of torture).

[101] We therefore conclude that the application judge’s failure to conduct the risk assessment mandated by the child’s refugee status, the evidentiary record and the child’s s. 7 Charter rights is fatal to the order of return.

…

(c) Failing to ensure the child’s participation at the Hearing

[118] The father and certain interveners also argue that, because her s. 7 Charter rights were engaged, the child had a right to participate in the Hearing. In Suresh, at para. 113, the Supreme Court held that the same principles underlying the common law duty of procedural fairness underlie the procedural protections required by s. 7 of the Charter and that those protections must be applied “in a manner sensitive to the context of specific factual situations”. In Németh, at para. 70, the court held that these protections “generally [include] adequate disclosure of the case against the person sought, a reasonable opportunity to respond to it and a reasonable opportunity to state his or her own case” (citations omitted): see also Suresh at paras. 121-26; Charkaoui at para. 61.

[119] Based on this clear and consistent direction from the Supreme Court, we conclude that the same procedural protections apply to a refugee child whose return from Canada to a foreign jurisdiction is sought under the Hague Convention.

[120] An order of return under the Hague Convention has a profound and often searing impact on the affected child. Where the proposed return engages the child’s s. 7 Charter rights, as in this case, meaningful procedural protections must be afforded to the child. In our view, these include the right to: (1) receive notice of the application; (2) receive adequate disclosure of the case for an order of return; (3) a reasonable opportunity to respond to that case: (4) a reasonable opportunity to have his or her views on the merits of the application considered in accordance with the child’s age and level of maturity; and (5) the right to representation.

[121] In addition, at this point in the development of the law, there can be no serious debate that the affected parties, including the refugee child, are entitled to reasons for the Hague application judge’s decision: see R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 24 and 55; Young v. Young (2003), 63 O.R. (3d) 112 (C.A.), at paras. 26-27; Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.), at paras. 8-10; F.H. v. McDougall, [2008] 3 S.C.R. 41, at paras. 98-100; R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 8-14.

[122] In this case, the child received no notice of the Hague application or of the return date for the Hearing. Her views and preferences were not sought or obtained at the Hearing, nor, despite her aunts’ efforts, was she represented by counsel at the Hearing. In these circumstances, we have no hesitation in concluding that the child was denied procedural fairness and that her s. 7 Charter rights were infringed.